Answering Your Legal Questions about that Kentucky Clerk

I really didn’t want to write more about Kim Davis, the Kentucky Clerk who refuses to issue legal marriage licenses to people she is bigoted against … but she just won’t go away. People keep emailing me about the case.  So let’s answer a few legal questions.

Has she broken the law? No, she has not “broken the law” in the strictest sense.  What she did was refuse to do her job for religious reasons and ordered everyone in her office to refuse too. As someone pointed out, this would be like having a Jewish postmaster who feels that delivering Christmas Cards was against his religion, so he orders all the mail carriers under him to not deliver any of these cards. Or maybe a better example is a Muslim clerk at the DMV who doesn’t believe women should drive and so prevents any licenses to be issued to women.

Kim Davis and the Constitutional scholars she relies upon

Kim Davis and the Constitutional scholars she relies upon

Kim Davis is not following the law. This denied basic civil rights to citizens who were entitled to them. The judge ordered her to give people what they are entitled to under the law. She refused, and got to see the jail from the inside.

But there really isn’t a “law” to allow gay marriage, is there?  Her idiot supporters argue with a straight face that there is no “law” allowing gay marriage and therefore she is doing nothing wrong. I have no idea what this stupid argument means. There is a law providing for marriage, and the Supreme Court has said that the law must be applied without discriminating. There is also no “law” that specifically says a marriage is allowed between different races, yet no one thinks this Clerk could refuse to issue one, do they?

This argument comes from morons like Mike Huckabee, who wants to swear an oath to the Constitution but has apparently never read it. He argues with a straight face that since the legislature never passed a law allowing gay marriage, the Supreme Court didn’t have the right to make the decision in the first place and therefore we can all ignore the Supreme Court’s ruling. This is the kind of argument that we lawyers refer to in our legalese way as “bullshit.”

Can she fire the clerk who is issuing these licenses? Fortunately, one of the Clerks in her office has stated that he will continue to issue marriages to anyone eligible even if she comes back and orders him not to (as she has vowed to do in her loving, Christian way). Can she fire him? Sure, but would it be a legal firing? Probably not. How can you justify firing someone who did their job when you ordered them not to? He’d have a pretty good case against the state for an unjust firing. (Since this is Kentucky, I can be fairly sure these people aren’t unionized like they are in my area.)

Can she cancel the licenses her office has given out already? No. She doesn’t have a job that allows her discretion. If you are eligible for a license, you get one.

She may try, of course, and I think that will not be appreciated by the judge.

Can she go back to jail, and how long can she stay there? She is out of jail now, because the judge assumes she will either do her job or allow others to do their job. If she still refuses to do so, the judge will probably send her back to jail. That’s what Contempt is for — they’re not meant to be punishment, but instead to force people to do what they are supposed to do.

You might recall cases where journalists refused to reveal their sources and were held in contempt. Some stayed in jail for months.

How can we get rid of her? The only way to get rid of this elected person is to impeach her. This is Kentucky, so that’s probably not going to happen, any more than Alabama would have impeached George Wallace when he disobeyed the courts to block black children from going to school with white children 50 years ago. The judge cannot force the legislature to do this; all he can do is keep jailing her if she refuses to obey his orders.

Why are her lawyers doing this? Davis’ lawyers are a bunch of right-wing hacks supported by a lobbying group that is propping her up to use as a fundraising measure. Their briefs have little law in them and read more like the kind of rants you see on crazy blogs that talk about “God’s Law” ruling over secular law. They probably know they have no legal basis for their appeals and so instead are writing what their donors want to read. That way, when the judge rules against them, they can argue that he is “denying God.” Ca-ching! More donations. Appealing to bigotry has become quite profitable lately, you know.

Her own lawyers have to know she will never be successful. A recent legal panel on Fox unanimously was against her, calling her lawyer “incredibly stupid.” (Yes, I did say “Fox” — not a mistake.) When even the experts at Fox News are against you…

Why is there a double standard when Obama violates the Constitution all the time and gets away with it? Seriously, people ask this, and usually their definition of “violating the Constitution” boils down to “does stuff I don’t like.” Some people know in their hearts what the Constitution says and means without that pesky need to actually learn anything about it (in much the same way Kim Davis has done with the Bible).

Is the judge some sort of liberal crusader?  No. The judge is a conservative Republican, appointed by George W. Bush. He probably doesn’t support gay marriage, but he does support the law. You gotta admire him for that.

Quit the damned job already, bigot

I had a nicer headline originally but you know, this better expresses my feelings.

The United States Supreme Court yesterday denied the Kentucky clerk’s appeal wherein she claimed that she should not be forced to perform her job because of her religious beliefs.

As a Christian, she has vowed to obey the Bible, which says gay couples should not get married. (It actually doesn’t say that at all, but that has never stopped True Believers). She is still refusing to do it. appealsAs a clerk, she is supposed to certify marriages and not discriminate, but she is claiming that God’s Law supercedes American law. (It actually doesn’t, but that has never stopped True Believers.)

All the standard hypocritical nonsense is there — for instance, she’s been married herself four times (which actually is prohibited very clearly in the Bible).

Bigotry in the name of religion is still bigotry. If her religious order was against, say, interracial marriage, she would not have the right to deny marriage licenses to interracial couples either. I assume her religion also says that marriages should be between people in her own religion, yet this woman grants marriage licenses to people from every religion and no religion all the time.

No, this is just plain bigotry.

I blame the Hobby Lobby case for some of this, wherein the Supreme Court decided that businesses can have religion (WTF?) and thus discriminate on the basis of it. The Supreme Court views this case differently for one major reason: This is not a business.  Seriously. Businesses always win in the Supreme Court these days.

But back to this woman: I’m sure she has firmly held beliefs. But if those beliefs prevent her from performing her job, then she should resign. Issuing marriage licenses is part of her job requirements.

Can you imagine if you refused to perform part of your job because your religion said you couldn’t do it?  How long do you think you’d keep your job?

 

The Wrong Side of History

Have you noticed that there are no statues, postage stamps, or medals honoring George Wallace standing in front of the schoolhouse door saying “Segregation now, segregation tomorrow, segregation forever”?

That’s because, despite the fact that he had the support of many people, he was wrong. He was the Bad Guy who wanted to force his prejudices on everyone else.

The people who are now standing in the way of marriage equality are a pretty good mirror image of this. Oh sure, they absolutely think they are right and have the approval of their god in this, but so did the racists who fought to keep innocent black children from going to school.

None of these people will be reading this blog, so I’m preaching to the choir — but some of you may want to ask yourself that question. Are you on the wrong side of history? Perhaps on similar issues, such as transgender rights?

History leads to more equality, not less. History means more acceptance of those who are different from us. History skews liberal.

My conservative friends especially might ask this about many of their political views, perhaps concerning health care. Let’s face it, historically conservatives opposed social security, medicare, medicaid, gay rights, women’s rights, voting rights, the civil rights act, minimum wage, and many other progressive reforms that later became law and now are supported by the vast majority of Americans, including most conservatives. They were on the wrong side of history.

Are you?

Nothing Civil About this Disobedience

by Guest Blogger Michael Strauss

The United States has a proud tradition of civil disobedience. And this tradition is one that is heralded by those on both the right (Boston Tea Party, Cliven Bundy) and left (Ferguson, Baltimore). Once again the cry and hue for civil disobedience is being raised, this time primarily by Republican legislators and elected officials, in response to the Supreme Court ruling in Obergefell v. Hodges (legalizing gay marriage nationally).

But this raises a rather simple question: Is this actually civil disobedience?

As an old friend stated, there seems to be nothing civil about this disobedience. And while it was meant as a humorous quip, it is also rather on the nose as well.

First and foremost, civil disobedience, at its core, is still disobedience. When you disobey the law, no matter your reasons, you are punished for that disobedience. That is the side of civil disobedience we always seem to conveniently forget.

Texas AG Ken Paxton ignores the oath he took to uphold the Constitution

Texas AG Ken Paxton ignores the oath he took to uphold the Constitution

Despite the fact that he was one of the most peaceful men ever born, Martin Luther King Jr. was arrested 30 times for civil disobedience. He understood he would be arrested. In fact, mass arrests were literally part of his plan for building publicity for his movement. He never struggled against those arrests and actually refused to accept bail in some cases, in order to show support for his cause.

MLK understood that part of civil disobedience means that you accept your punishment willingly. That is why, no matter how much liberals applauded Bree Newsome (the woman who scaled the flagpole at the SC capitol and removed the Confederate flag), it is right and appropriate that she was arrested and will be tried. If she truly believes in her cause, she should plead guilty.

And then there is Ken Paxton. Ken Paxton would have you believe that he is following in the footsteps of MLK with his civil disobedience against the Supreme Court ruling, but his isn’t. Even if you accept his rather flimsy argument that he is fighting for the rights of religious Americans (that for some reason always seem to be Christians, despite the fact that both Jews and Muslims are likely to hold the same beliefs on “traditional marriage”), rather than against the rights of non-heterosexual Americans, he still isn’t engaging in civil disobedience.

Unlike MLK or Newsome or those patriots in 1773, he simply is unwilling to suffer the penalty for his disobedience. Just the opposite. He explicitly told the clerks and probate judges of Texas that they would have to suffer for obeying his order to invoke religious liberty, in direct violation of the Supreme Court ruling, but that he would be safe in his Ivory Tower. That isn’t civil disobedience. That is simply an abuse of power.

Which brings us to the second reason that Paxton and Abbott and Jindal (and any other elected or appointed official following this path) isn’t engaging in civil disobedience. As my old friend said, there is nothing civil about it. The word “civil” is a reference to Joe or Jane Q. Public. Martin Luther King Jr., the Tea Party patriots, Bree Newsome, Susan B. Anthony and even Cliven Bundy all share a common trait. None of them wielded direct legislative, judicial, or executive power.

Unlike Jane and Joe Q. Public, government officials have legal power and tools to try to change laws. Even Supreme Court rulings can be overruled (the Dred Scott decision is no longer the law of the land). The process may be ponderous, but those tools are available to people at pretty much every level of government, especially to state governors. The average citizen doesn’t have those tools or power, which is why they engage in civil disobedience. Anyone who uses power invested in them to violate the law is simply being a fascist dictator.

If Ken Paxton truly wishes to engage in civil disobedience, then he needs to follow the example of Linda Barnette, the woman who quit her job as a Grenada county clerk rather than issue marriage licenses to non-heterosexual couples. Whether you agree with her stance or not, her decision is a shining example of the correct way to object to this Supreme Court decision. Linda Barnette, a simple county clerk, made a principled, legal stand for her beliefs.

Why are Paxton and Jindal incapable of following her example?

Michael is a New Jersey native that somehow landed in Pittsburgh.  He is a writer by trade and an amateur political commentator by choice.  He enjoys tweaking the noses of liberals and conservatives alike.

Let’s have “Traditional” marriage in our laws

Republican Politicians like Rick Santorum and Mike Huckabee constantly argue that we need to have our laws follow “God’s laws” concerning marriage.

Therefore, here are some proposed laws to make sure that we support traditional marriage:

A. Marriage in the United States shall consist of a union between one man and one or more women. (Gen 29:17-28; II Sam 3:2-5)traditional-marriage

B. Marriage shall not impede a man’s right to take concubines in addition to his wife or wives. (II Sam 5:13; I Kings 11:3; II Chron 11:21)

C. A marriage shall be considered valid only if the wife is a virgin. If the wife is not a virgin, she shall be executed. (Deut 22:13-21)

D. Marriage of a believer and a non-believer shall be forbidden. (Gen 24:3; Num 25:1-9; Ezra 9:12; Neh 10:30)

E. Since marriage is for life, neither this Constitution nor the constitution of any State, nor any state or federal law, shall be construed to permit divorce. (Deut 22:19; Mark 10:9)

F. If a married man dies without children, his brother shall marry the widow. If he refuses to marry his brother’s widow or deliberately does not give her children, he shall pay a fine of one shoe and be otherwise punished in a manner to be determined by law. (Gen 38:6-10; Deut 25:5-10)

G. In lieu of marriage, if there are no acceptable men in your town, it is required that you get your dad drunk and have sex with him (even if he had previously offered you up as a sex toy to men young and old), tag-teaming with any sisters you may have. Of course, this rule applies only if you are female. (Gen 19:31-36) 

Wait, wait — you mean those politicians don’t want traditional marriage at all? They just want to prevent gays from marrying? You mean they say that they want to obey God’s law but they are picking and choosing which of God’s laws they want to enforce?

Surely that can’t be right. I mean, if that was the case, then they’d all be a bunch of lying hypocrites, wouldn’t they?

Let them eat cake

A conservative who thought he was being clever recently called a bunch of bakeries owned by gays and demanded that they make him a cake saying “Gay marriage is wrong” and all said no.

Aha! Clearly there is a double standard here.cake

Well, no, there isn’t. A bakery has the right to say they won’t make a cake that says “gay marriage is wrong” or “gay marriage is right” or “support Barack Obama” or “Vote Republican.”

If a bakery gladly makes penis-shaped cakes for heterosexual parties but refuses to make one for a homosexual party, then I think that is wrong. Clearly, they do not object to what they are making at that point, just who they are selling to. And that’s the problem. It’s the exact same product!

If you offer a product to the world, you should not be allowed to discriminate. You can’t say “I will sell this wedding cake design to everyone except the Irish,” for instance. And that’s the issue — when a gay couple asks a baker to give them a cake exactly like a straight couple gets, the bakery should not be allowed to say no. (I say “should” because in most states, it is perfectly legal for individuals to discriminate against gays, even when the state can’t discriminate.)

This is different from a service. A band can certainly refuse to play at a KKK rally or even a “Ted Cruz for President” event. A caterer can say that they don’t want to cater to you. A hall can refuse to rent to a group it disagrees with. I, as a lawyer, do not have to accept every single client that comes into my office with money.

There are plenty of gray areas here, but I think this is the basic distinction that many do not understand (or agree with).

Bigots present another false argument

“Liberals want to force kosher delis to serve bacon against their will!”

Seen that argument yet? Stupid, isn’t it? Somehow, people who support bigotry think that if we require bakeries to make cakes for gay couples that then we will be forcing businesses to sell products that go against their religion. imagesizerNo, no, no.

This is not about forcing a business to sell something it doesn’t want to sell. Don’t want to sell bacon? Fine, don’t sell bacon.

This is about selling a product and then deciding that you’re going to sell it to everyone except a certain group. If you are opening a business, you open it to everyone. You don’t discriminate.

Didn’t we already decide this years ago? Is there any difference between pizza parlors in Indiana refusing to serve gays and lunch counters in Alabama refusing to serve blacks?

Oh, and don’t go giving me the argument that you are supporting freedom and libertarianism and all that crap. Look at the end result: You’re supporting allowing someone to deny rights to someone else. It’s as false as the argument that the South was fighting for “state’s rights” and the fact that it meant people would thus be held in slavery is irrelevant.